Date:
20130408
Docket:
A-59-13
Citation: 2013 FCA 73
Present: SHARLOW
J.A.
DAWSON J.A.
WEBB
J.A.
BETWEEN:
TWAIN
A. COOTE
Appellant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT
SHARLOW J.A.
[1]
The
respondent the Minister of Citizenship and Immigration seeks an order striking
this appeal because it is barred by paragraph 72(2)(e) or paragraph 74(d)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2]
No
responding motion record has been filed. However, the appellant Mr. Coote
submitted a letter to the Court dated February 18, 2013, which was received on
February 20, 2013. Although there is no evidence that a copy of that letter was
sent to counsel for the Minister, it has been treated as a submission by Mr.
Coote in response to the Minister’s motion.
[3]
Based
on the material on file, it appears that Mr. Coote is the subject of a
deportation order made on December 20, 2007. In a decision dated April 20,
2012, the Immigration Appeal Division rejected Mr. Coote’s application for an
order permitting him to remain in Canada. On May 17, 2012, Mr. Coote filed an
application for leave and judicial review of that decision (Federal Court File
IMM-4789-12). That file remains open. There is no order or judgment of the
Federal Court dismissing it.
[4]
On
July 20, 2012, Prothonotary Aalto dismissed the motion of Mr. Coote in which he
sought, among other things, an extension of time for filing a record in support
of his Federal Court application. On August 21, 2012, Justice Hughes dismissed
a motion by Mr. Coote for an order setting aside the order of Prothonotary
Aalto. On September 17, 2012, Justice Hughes dismissed a motion by Mr. Coote
for reconsideration of his August 21, 2012 order.
[5]
On
January 23, 2013, Justice O’Keefe directed that a motion by Mr. Coote for
reconsideration of the September 17, 2012 order of Justice Hughes would be
dealt with under Rule 369, that is, on the basis of the written material filed
and without an oral hearing. On January 31, 2013, the reconsideration motion
came before Justice Mosley, who dismissed it after concluding that the conditions
for reconsideration had not been met.
[6]
Mr.
Coote is now seeking to appeal the January 31, 2013 order of Justice Mosley.
The Minister argues that no appeal lies from that order, and for that reason it
should be struck.
[7]
Pursuant to paragraphs 27(1)(a) and (c) of
the Federal Courts Act, R.S.C. 1985, c. F-7, an appeal lies to this
Court from any final or interlocutory judgment of the Federal Court. However, those
provisions do not apply if an appeal is barred by another statute.
[8]
The
order sought to be appealed was made in an application for leave and judicial
review of a decision made under the Immigration and Refugee Protection Act.
No appeal lies to this Court against an interlocutory judgment in that application
(paragraph 72(2)(e) of the Immigration and Refugee Protection Act),
or against a final judgment unless the judge rendering the final judgment
certifies that a serious question of general importance is involved and states
the question (paragraph 74(d) of the Immigration and Refugee
Protection Act).
[9]
Mr.
Coote takes the position that the order he seeks to appeal is a final judgment
in his Federal Court application. I do not agree, but even if it is a final
judgment, it cannot be appealed to this Court because no question of general
importance has been certified.
[10]
Mr.
Coote alleges that Justice Mosley, in making his January 31, 2013 order, acted
without jurisdiction or refused to exercise his jurisdiction, or that he had a
conflict of interest. These allegations apparently are made in an attempt to
bring this matter within the limited class of cases where this Court has
entertained an appeal in an immigration matter despite paragraphs 72(2)(e)
and 74(d) of the Immigration and Refugee Protection Act. However,
those allegations are unfounded. The record discloses no basis upon which this
Court can entertain this appeal.
[11]
For
these reasons, I would grant the Crown’s motion to strike this appeal.
“K. Sharlow”
“I
agree
Eleanor R. Dawson J.A.”
“I
agree
Wyman W. Webb J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-59-13
STYLE OF CAUSE: TWAIN
A. COOTE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR JUDGMENT BY: SHARLOW
J.A.
CONCURRED IN BY: DAWSON, WEBB JJ.A.
DATED: March
8, 2013
WRITTEN REPRESENTATIONS BY:
|
Twain A. Coote
|
FOR THE APPELLANT (SELF REPRESENTED)
|
|
Tamrat Gebeyehu
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
William F. Pentney
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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